Due Process – Law Street

Due Process is the Red Herring in the LGBTQ Movement

Chris Copeland — Wed, 23 Jul 2014 18:37:53 +0000

The U.S. Court of Appeals for the 10th Circuit recently ruled that states cannot deprive a person of the fundamental right to marry simply because he or she chooses a partner of the same sex. This marked the first time that a federal appeals court has weighed in on the matter, and the early thinking is that the Supreme Court may take this case. Finally, marriage equality in all 50 states, right?

This is all good, yeah, woohoo! (Sidenote: my gaydar sucks big time. Straight guys are gay, gay guys are straight. Hell, lesbians are twinks and vice versa, but I thought I had developed a fail-safe. To determine if a guy is family, I simply look down at his ring finger. Last week, I caught myself doing this. I looked down at this dude’s finger, which indeed was adorned with a ring. Done — he’s straight. Then I remembered the whole marriage equality thing: he’s gay! But, as he opened his clearly European mouth and uttered something about the weather, his Belfast burr turning “air” to “ire,” I remembered the Euro-metrosexual-monkey-wrench! Gay or straight, damnit?! Alas, I resigned myself to utter cluelessness.)

Courtesy of Quick Meme

In all seriousness, it’s really awesome that the lines between gay relationships and straight relationships are increasingly blurry. That’s not the endgame, though. Even if the Supreme Court takes this Utah case and sides with the 10th Circuit about the fundamental right to marry (big assumptions with the Roberts Court), it won’t affect other types of discrimination against the LGBTQ community. Marriage equality is only the opening salvo in a still-uphill battle for full equality. We ought not lose sight of that.

Don’t get me wrong, ever the Machiavelli in me says sure, get to marriage equality by any means necessary. Those means, under the reasoning of the 10th Circuit, would be the Fourteenth Amendment’s Due Process Clause. That is, if the Supreme Court rules favorably in this case, and on due process grounds, it would mean that no person, gay or straight, can be deprived of the right to marry. But due process deals only with “fundamental rights.” What about laws that discriminate against gay men in blood donation? What about workplace discrimination?

Courtesy of Matt Buck via Flickr

A decision on due process grounds would not touch these other types of discrimination, but a ruling under the Fourteenth Amendment’s Equal Protection Clause would. That would deal with all manner of discrimination against the LGBTQ community, including marriage equality.

Brief Equal Protection primer: Under the Fourteenth Amendment’s Equal Protection Clause, laws that single out a specific group for differential treatment or disproportionately impact that group, if challenged, are subject to judicial review. If the law discriminates on the basis of a suspect classification, such as race, it must satisfy the most exacting degree of review — strict scrutiny. Thanks to second-wave feminism, discrimination on the basis of sex/gender is subject to intermediate scrutiny. As it stands now, discrimination on the basis of sexual orientation is subject to the lowest, most deferential level of judicial review — rational basis review.

Blah, blah, blah, I’m losing you so let me get to the point. Until the Supreme Court rules on equal protection grounds rather than due process that sexual orientation-based discrimination merits a higher level of judicial scrutiny, discriminatory laws will continue to receive minimal judicial scrutiny.

I’m glad that marriage equality is sweeping across the country, and that the Supreme Court may finally have occasion to legalize it nationwide. Indeed, by no means would this be a pyrrhic victory. However, it would only nominally affect other issues of discrimination against the LGBTQ community, issues that are arguably more important than marriage equality.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [Victoria Pickering via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.

The post Due Process is the Red Herring in the LGBTQ Movement appeared first on Law Street.

The Evolution of Solitary Confinement in the United States

Madeleine Stern — Wed, 02 Jul 2014 19:40:28 +0000

image courtesy of [jmiller291 via Flickr]

Many prisons use solitary confinement as a mechanism to control their prison populations and minimize the threat of danger to other inmates and prison staff. Yet extreme isolation is an unnatural punishment and can cause severe psychological, or sometimes even physical, damage. The effectiveness and methods of solitary confinement has been debated since its modern day inception as a form of punishment in the 1800s, yet it was not until recent years that states began to question the constitutionality of the matter. As convicts, prisoners have little sympathy from the general population; yet there are arguments for the release of prisoners who are placed in solitary confinement for indefinite amounts of time and for non-violent reasons. The argument in favor of regulating or eliminating the age old method is that these people are being placed under “cruel and unusual” circumstances, and are being released back into society in an even worse condition than before they were incarcerated. As of 2013, the United States holds roughly 2.3 million inmates in federal, state, and local jails, 80,000 of which are in solitary confinement.

What is Solitary Confinement?

There are two main types of solitary confinement that are primarily used in the United States. Disciplinary solitary confinement is used to punish an inmate for a violation of minor jail rules or protocol; administrative solitary confinement is used to isolate dangerous prisoners from the rest of the prison population and staff. Often prisoners who are placed in the latter group will remain in Supermax cells for months to years, sometimes for an undetermined length of time.

Typically solitary confinement is reserved for the most threatening and aggressive inmates, so the conditions are not cozy. Cells are typically “80 feet [10 by 8 feet], not much larger than a king-size bed,” and sometimes even smaller; they do not have any windows and the floors are hard concrete. The door is typically heavy metal and locks with massive bolts. Prisoners are isolated for 23 hours out of the day, and receive one hour of heavily monitored recreational activity in another slightly larger cell. Meals are slid through a small space in the door so prisoners remain completely isolated even during meal times.The cell is left bare, so prisoners often resort to habitual pacing and sometimes create routines to mimic life outside of prison. Prisoners may receive an early release from the designated amount of time if they practice “good behavior” and attend classes to improve themselves.

History of Solitary Confinement

Solitary Confinement is thought to have started in a Philadelphia jail in the 1800s. The Quakers felt that by placing criminals in isolation they would have time to read the Bible and repent for their sins. The original idea behind solitary confinement was to reform inmates, as opposed to violently punishing them.

The Invention of Solitary Confinement — The Eastern State Penitentiary:

Another early prison that used a form of solitary confinement was the New York jail, Auburn. There, the “Auburn System,” a method of punishment in which prisoners were required to do manual labor all day in silence before being sent off to solitary confinement for the remainder of the night, was developed. This system gained popularity in prisons across the country. During this time, Auburn and other prisons also used forms of torture as a punishment. One popular method was the “shower bath.” This consisted of placing a prisoner under a constant flow of an excessive and painful amount of water. The flood would beat them over the head, getting into their eyes and mouths, nearly drowning them. Sometimes the shock would cause prisoners to fall dead moments later.

Psychological Effects and Ethics

It is hard to think of people who have committed heinous crimes as actual people, yet putting them under such harsh conditions can be embarrassing, alarming, and disgusting. Many times inmates display suicidal tendencies and harm themselves with makeshift weapons. Others resort to odd and erratic behaviors such as rubbing feces on themselves, pacing mindlessly, or cutting themselves. If solitary confinement is supposed to teach a lesson, it may be counterintuitive to its original purpose. Prisoners who are placed in solitary confinement will experience several psychological and physical effects of being in isolation for an extended period of time. According to Frontiers in Psychology, “One’s own existence is something that one experiences in the kinds of pragmatic projects that one shares with others.” When deprived of the basic human need of socialization for long enough, people begin to display mentally unstable and even insane behaviors.

Prisoners in solitary confinement may begin experiencing:

Visual and auditory hallucinations

Hypersensitivity to noise and touch

Insomnia and paranoia

Uncontrollable feelings of rage and fear

Distortions of time and perception

Increased risk of suicide

Post Traumatic Stress Disorder (PTSD)

The development of crippling obsessions

When prisoners do not experience any interactions with other people they begin to lose a sense of reality. Their internal thoughts become a blur with the external world, which they have ceased to experience. Not only is this inhumane, but it also defeats the purpose of punishing the guilty. Integrating the prisoner back into society becomes more challenging, and they become a product of isolation. This is not only detrimental to the individual, but also society.

According to International Journal of Offender Therapy and Comparative Criminology, in 1890 the United States Supreme Court began to note the inhumane and damaging effects that solitary confinement has on the prisoners:

“A considerable number of prisoners […] became violently insane; other still, committed suicide, while those who stood the ordeal better were not generally reformed and in most cases did not recover sufficient mental activity to be any subsequent service to the community.”

ABCNews personality Dan Harris voluntarily spends 48 hours in solitary confinement:

Prisoners’ Rights

The Eighth Amendment includes the cruel and unusual punishment clause and serves as the basis for civil rights advocates’ arguments against the use of solitary confinement in American prisons. The fact that prisoners have little to no human contact, let alone see daylight for months to years, could be considered cruel and unusual. The argument that solitary confinement violates a prisoner’s constitutional rights prevails as the center controversy for advocates and courts. While incarcerated, prisoners are provided with medical and mental services, although whether they are adequate or not is debatable, and many cases regarding health care and general prison conditions have been brought to the forefront within the last 20 years.

To view the document outlining prisoner’s medical, dental, and mental health rights click here.

Case Study: Pelican State Bay Prison (Ashker v. Brown)

The case Ashker v. Brown was sparked by a 2011 hunger strike led by prisoners at Pelican State Bay Prison in Crescent City, California. The strike drew attention to the unpalatable conditions that prisoners in solitary confinement experience. In an extended effort in May 2012, the Center for Constitutional Rights filed a lawsuit against Pelican State Bay Prison for allegedly violating the Eighth Amendment as well as the Due Process Clause in the Fourteenth Amendment. Many prisons lack adequate medical care, and prisoners are denied an in-depth review of their cases before being placed in solitary confinement.

Case Study: Nicole Guerrero v. Wichita County

Pregnant inmate Nicole Guerrero was placed in solitary confinement in a Texas jail in 2012. While in ‘the hole’ she began to experience excruciating pain and intense cramps due to labor. The medical staff at the prison reportedly ignored her for hours. She was forced to give birth alone, and when the prison medical staff finally came to the scene the baby was dead due to the umbilical cord being wrapped around its neck. This case supports the argument noting the lack of medical attention prisoners in solitary confinement receive, and brings states closer to regulating the controversial practice.

Peoples v. Fischer

In June 2012, the New York City Civil Liberties Union filed a lawsuit on behalf of prisoner Leroy Peoples. Peoples spent three years in solitary confinement for filing false legal documents. Violating any of the codes that the prison regards as against protocol has the potential to send a prisoner into solitary. According to the Civil Liberty Union, “only 16 percent of isolation sentences from 2007 to 2011 were for assault or weapons.” Solitary confinement served the original purpose of protecting staff and other inmates from potentially dangerous prisoners; now prison systems are abusing the extreme form of punishment, and overusing solitary confinement for reasons other than violence. Another issue that the NYCLU addresses is the fact that solitary confinement is used as a source of punishment for juveniles, pregnant inmates, and the mentally ill. The Union argues that this is inhumane and more permanently damaging to these more vulnerable groups of inmates. Currently, the outcome of the case is in reconsideration, and “if the process fails, the NYCLU will resume litigation.”

Click here to see the Institutional Laws of Conduct.

Innovation in the Prison System

Recently Colorado signed into legislation a law that bans prisons from placing mentally ill inmates in long-term solitary confinement. According to the Wall Street Journal, “Maine and New Mexico have taken steps to reduce their use of solitary confinement, and Nevada and Texas are studying the issue.” Similarly in a document, New York has decided to “remove youth, pregnant inmates and developmentally disabled and intellectually from extreme isolation.”

Click here to see New York’s agreement to reform solitary confinement in the prison system.

Some opponents of the practice suggest alternative methods; instead of placing inmates in solitary confinement, they could be sent to a mental-health care unit within prison where the individual can be treated instead of punished. Of course, this idea receives strong opposition, yet New York has decided to enact a version of it.

Resources

Journal of Constitutional Law: Prolonged Solitary Confinement and the Constitution

NYCLU: Peoples v. Fischer

Correctional Association of New York: Shining Our Spotlight on Auburn Correctional Facility

CNN: Solitary Confinement: 29 Years in a Box

PBS: Solitary Confinement and the U.S. Prison System

Pennsylvania Prison Society: Violence in the Supermax: A Self-Fulfilling Prophecy

Washington Post: Va. Prisons’ Use of Solitary Confinement is Scrutinized

The New York Times: New York State in Deal to Limit Solitary Confinement

Center for Constitutional Rights: Ashker v. Brown

NYCLU: Lawsuit Secures Historic Reforms to Solitary Confinement

CNN: Texas Wom Claims She Gave Birth Alone in Jail, Baby Died

Wall Street Journal: Colorado Becomes Latest to Back Ban on Solitary Confinement of Mentally Ill

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Madeleine Stern

Madeleine Stern attended George Mason University majoring in Journalism and minoring in Theater. Her writing on solitary confinement inspired her to pursue a graduate degree in clinical counseling after graduation. Madeleine is an avid runner, dedicated animal lover, and a children’s ballet instructor. Contact Madeleine at staff@LawStreetMedia.com.

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LGBT Community Makes Great Strides, Other Minority Groups’ Rights Eroding

Chris Copeland — Fri, 20 Jun 2014 10:30:15 +0000

Gather ‘round, Constant Reader (if I may be so presumptuous with my very first blog post). Let’s wax nostalgic for a tick.

There we go. That should set the mood.

It’s 1987. Hollywood’s been treating the world to some gems: Adventures in Babysitting; The Lost Boys; Nightmare on Elm Street III. On the politics front, the sun is setting on Reagan’s presidency and the Cold War. Most importantly, though, the Washington football team (which shall remain nameless) has made it to Super Bowl XXII. It’s halftime and they’ve just hung 35 second-quarter points on the Broncos — a Super Bowl record. By game’s end, the Washington football team’s quarterback, Doug Williams, would be become the first black quarterback to win the Super Bowl.

Despite Williams’ achievement, the idea persisted that black quarterbacks aren’t as smart as their white counterparts. Years later, this refrain played out to major controversy when Rush Limbaugh called Donovan McNabb, quarterback of the Philadelphia Eagles, overrated, explaining that the liberal, mainstream media with its PC bromides just wanted to see a black quarterback succeed.

Fast forward to this year. And thank you, by the way, for allowing me a momentary walk down memory lane. It does indeed warm my very gay heart cockles to talk football (usually 49ers). But, with that jaunt I have a point: the NFL appeared to have progressed by leaps and bounds when the St. Louis Rams drafted Michael Sam earlier this year, the first openly gay football player in the NFL.

Courtesy of PopWrapped

To boot, the cameras then panned to him planting an Al-and-Tipper-level kiss on his boyfriend.

Yeah, that disaster

Even more, Michael Sam is black and in an interracial relationship. Boom! Check, check, and check. Who’da thunk the NFL could be so forward? So au currant?

I tried to place the Michael Sam moment into the larger context of recent progress generally. In President Obama’s purportedly transcendent America, same-sex marriage has rapidly swept across the country. Just earlier this year, for instance, Judge John E. Jones III of Pennsylvania’s Middle District struck down Pennsylvania’s same-sex marriage ban, finding it in violation of the Constitution’s due process and equal protection clauses. Pennsylvania thus became the nineteenth state to effectively legalize same-sex marriage. Last year, the Supreme Court issued favorable rulings in the California Proposition 8 and DOMA cases.

Then I remembered that I’ve only ever lived really in the most liberal of hotbeds, Los Angeles and New York City, and I slowed my roll. In fact, I think we all ought to slow our rolls. While the LGBTQ community continues to march toward full equality, other minority communities are seeing their gains erode. Just look at the Supreme Court’s recent ruling upholding Michigan’s constitutional amendment banning affirmative action in admissions to the state’s public universities. (As an aside though, yay for Justice Sotomayor’s blistering, two-snaps-and-an-around-the-world smack down dissent!)

The LGBTQ community is rightfully and deservedly celebrating its recent electoral and legal victories. As a member of the community I have tempered my elation, though, because I feel deeply that the fortunes of “discrete and insular minorities” are intertwined. No doubt, the Michael Sam moment was indeed big; a watershed moment totally deserving of celebration. But let’s not get too ahead of ourselves. The NFL still makes its bones playing to the hyper-heteronormative crowd. Just sit through those Go-Daddy commercials during the Super Bowl. We aren’t yet living in the post-racial, post-gender, post-et-cetera world promised with the election of Barack Obama. Bigotry accumulated over time tends to pervade everything from society’s institutions to even its more subtle, discursive acts of culture. I’ll more fully celebrate the Michael-Sam-type moments when progress begins to happen on all fronts, not just one.

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Featured image courtesy of [VJnet via Flickr]

Chris Copeland

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Advisory Opinions in Federal Courts: Forbidden Territory

John Gomis — Fri, 31 Jan 2014 19:00:03 +0000

Image courtesy of [Joe Gratz via Flickr]

Advisory opinions are essentially pieces of advice offered by courts as a way to provide guidance on a particular law or issue. Since its inception, the United States Supreme Court, and federal courts in general, have not been allowed to issue advisory opinions, even though some onlookers have speculated that they may help cut down work flow and clear up ambiguities in the law. Read on to learn about the history of advisory opinions, the Supreme Court’s ban on releasing them, and how that has affected our American jurisprudence system.

What Exactly is an Advisory Opinion?

An advisory opinion is a non-binding explanation of the legal implications of a situation that has not arisen in actual litigation. An advisory opinion allows the legislature, the executive branch, or a lower court to gain insight into the prevailing judicial interpretation of a law, regulation, or constitutional amendment. This reduces the likelihood that a governmental act will be invalidated for conflicting with the Constitution, so it could save time or money. Advisory opinions are not binding precedent but are often treated as persuasive if no other precedent exists.

Why Can’t the Supreme Court Issue Advisory Opinions?

In the United States, federal courts are prohibited from issuing advisory opinions under Article III of the U.S. Constitution. Article III designates that any legal opinion promulgated by federal courts must pertain to an issue that is “mature for judicial resolution” and the parties must have a palpable interest in the case. Put more simply, the Supreme Court, or any lower federal courts, can only rule in a real case, not just when someone brings a topic to the court to ask for an opinion.

Partly at issue is the separation of powers. The job of the legislative branch is to make the laws, the executive branch is supposed to enforce them, and the judicial branch is supposed to interpret them. By allowing the judicial branch to interpret them earlier than is unnecessary, that separation becomes blurred. That’s the argument made by John Jay, the first Chief Justice of the Supreme Court, when he refused to offer judicial advice to President George Washington or Alexander Hamilton. Later, Justice William R. Day reinvigorated the argument against Supreme Court advisory opinions in Muskrat v. United States. He stated as a reason to not offer advisory opinions that:

The result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution.

Are There Alternatives to Advisory Opinions?

Certain state courts allow federal courts and courts of other states to ask them certified questions about actual controversies involving the state’s law. The U.S. Supreme Court also accepts certified questions about actual controversies from lower federal courts; however, this is a rare occurrence. A certified question is a request from one court to another court for clarification of a question of law. For example, if a cause of action under a state statute is brought in federal court, the federal court may send a certified question to the state court in order to gain clarification about how to interpret the state statute in accordance with the state’s jurisprudence.

Federal courts are able to employ preventative adjudication in the form of declaratory judgments due to the passage of the Declaratory Judgment Act. A declaratory judgment is a legal finding of a party’s actual legal rights in an actual case or controversy (or lack thereof) against another party. These judgments are binding though they can be appealed. The act allows a party to seek a declaration of his or her rights against another party even if no specific legal relief is sought in the case. If the proven facts show that there is a possibility that relief may be warranted in the future, then the act gives federal courts the discretion to issue declaratory judgments that define parties’ rights.

Federal courts maintain artful legal doctrines in order to ensure that Declaratory Judgments do not amount to de-facto Advisory Opinions. These doctrines are codified in the case of Ashwander v. Tennessee Valley Authority. In that case, the U.S. Supreme Court promulgated specific guidelines for the use of Judicial Review:

The Court will not determine the constitutionality of legislation in nonadversary proceedings.
It will not anticipate a question of constitutional law.
It will not formulate a rule of constitutional law broader than needed.
It will not rule on constitutionality if there is another ground for deciding the case.
It will not determine a statute’s validity unless the person complaining has been injured by it.
It will not invalidate a statute at the instance of persons who have taken advantage of its benefits.
It will always ascertain whether any reasonable interpretation of a statute will allow it to avoid the constitutional issue.

These guidelines are designed to prevent courts from promulgating interpretations of the Constitution outside of a ruling in an actual case or controversy.

What is the Argument for Changing the Laws to Allow Federal Courts to Issue Advisory Opinions?

Proponents of granting the Supreme Court the power to issue advisory opinions argue that judicial economy will be improved by the ability to issue opinions more quickly about pervasive legal issues. They also argue that the government can avoid wasting time and resources investing in programs and policies only to have it all be for naught if the government’s action is held to be unconstitutional. Ten states allow their highest courts to issue advisory opinions and the mechanism is an effective legal procedure in those states.

What is the Argument for Maintaining the Status Quo?

Opponents of granting the Supreme Court the power to issue advisory opinions argue that

Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to … sterile conclusions unrelated to actualities.

There are more expeditious and expedient means that government actors have for gaining necessary legal interpretations and findings from the courts, such as certified questions. Furthermore, there are procedural mechanisms that allow the legal status of a situation to be determined without the expense and difficulty of a full trial, such as declaratory judgments.